State v. Howard, 92-445

Citation509 N.W.2d 764
Decision Date22 December 1993
Docket NumberNo. 92-445,92-445
PartiesSTATE of Iowa, Appellee, v. Joseph HOWARD, Appellant.
CourtUnited States State Supreme Court of Iowa

Linda Del Gallo, State Appellate Defender and Andi S. Lipman, Asst. State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Thomas G. Fisher, Jr., Asst. Atty. Gen., Thomas J. Ferguson, County Atty., and Linda A. Hall, Asst. County Atty., for appellee.

Considered by McGIVERIN, C.J., and LARSON, CARTER, SNELL, and TERNUS, JJ.

McGIVERIN, Chief Justice.

Defendant Joseph Howard appeals his conviction of first-degree theft. Howard asserts that the district court erred in (1) denying his motion to suppress evidence he contends was the fruit of an illegal search, and (2) admitting into evidence a written statement from a burglar of the goods Howard possessed.

The court of appeals affirmed Howard's conviction. Upon further review, we affirm the court of appeals decision and the district court judgment.

I. Background facts and proceedings. In November 1991 the State charged Joseph Howard with possessing items stolen by three other individuals from three separate victims. The events leading to his arrest began earlier that summer when the Waterloo police received information that defendant had been storing at his apartment stolen property from a local business, school, and home and that he had been selling the items on the street.

After learning this information, deputy sheriff Russell Reicherts arranged a meeting with defendant Howard at which Reicherts told Howard that the police suspected him of possessing stolen property. Howard had served as an informant for Reicherts before; apparently, Reicherts told Howard that he was only interested in retrieving the property and that if Howard turned it over to the authorities, he would not be prosecuted. Defendant Howard admitted to Reicherts that he had some of the property and, upon Reicherts' direction, took Reicherts to an apartment where he often stayed with his girlfriend, Stephanie Baxter.

Upon arriving at the apartment, defendant's girlfriend Stephanie Baxter, and two juveniles, Aaron Burch and Jamie Payne, were present. Deputy Reicherts immediately identified himself to the others, but apparently Howard and Reicherts explained that no one was in trouble and that the officer intended only to recover the stolen property. Howard then pointed out to Reicherts several of the stolen items throughout the house.

After observing the stolen items, Reicherts called two other officers to secure the apartment while he obtained a search warrant. The deputy returned several hours later with a search warrant and asked defendant Howard and Stephanie Baxter to sign a consent-to-search form. Both defendant and Baxter complied.

The officers then searched the apartment and seized a computer, a printer, VCR, television, video camera, and two computer keyboards--all of which were identified as stolen.

The officers subsequently obtained statements from Aaron Burch and Jamie Payne. Based on the information in Payne's statement, the officers later returned to the residence and seized a stolen stereo in the living room of the apartment.

Prior to the trial, defendant Howard filed a motion to suppress the information he had given deputy Reicherts because Reicherts had elicited the statements on promises of leniency. The district court, after a hearing, agreed with Howard and suppressed his statements to deputy Reicherts.

Defendant Howard then filed a second motion to suppress in which he argued that the search warrant Reicherts obtained and the property he seized as a result of the second search were the fruit of the statements suppressed in the first motion. Howard also filed a motion to dismiss arguing that without the suppressed statements, insufficient evidence remained to support a conviction. The court overruled these motions.

After a jury trial, defendant was convicted and sentenced for the crime of first-degree theft in violation of Iowa Code sections 714.1(4) and 714.2(1) (1991).

Defendant appealed.

Howard contends on appeal that the trial court erred in denying his second motion to suppress. He contends the items Reicherts seized during the execution of the search warrant were the fruits of an earlier, unlawful warrantless search that was based on the suppressed statements. Defendant Howard finally contends that the trial court erred in admitting exhibit G, a written statement of Aaron Burch, one of the burglars, taken by deputy Reicherts and introduced into evidence by the State at trial.

II. Motion to suppress. Howard contends the trial court erred in denying his motion to suppress the evidence that the police officers seized when deputy Reicherts returned to Howard's apartment after obtaining a search warrant.

The fourth amendment of the federal constitution protects against unreasonable searches and seizures. U.S. Const. amend. IV; see also Iowa Const. art. I, § 8. The constitutional guarantees recognized by the fourth amendment have been extended to the States by the fourteenth amendment of the federal constitution. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961).

Warrantless searches and seizures are per se unreasonable unless the State proves by a preponderance of the evidence that a recognized exception to the warrant requirement applies. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967); State v. Vincik, 436 N.W.2d 350, 353 (Iowa 1989); State v. Folkens, 281 N.W.2d 1, 3 (Iowa 1979). The exceptions include searches based on consent, plain view, exigent circumstances, and searches incident to arrest. State v. Lamp, 322 N.W.2d 48, 53 (Iowa 1982).

In the present case, the initial search of the defendant's apartment constituted an illegal warrantless search. The trial court found that deputy Reicherts made promises of leniency to defendant Howard. These promises rendered involuntary defendant Howard's statements concerning the stolen items inside his residence. See State v. Hilpipre, 242 N.W.2d 306, 311-12 (Iowa 1976); State v. Ware, 205 N.W.2d 700, 703 (Iowa 1973).

The questions involved in this appeal, however, involve deputy Reicherts' second entrance into the apartment, which occurred only after he had secured the residence by calling two other officers on the scene and after Reicherts had obtained a search warrant. Prior to the second search, moreover, deputy Reicherts secured Howard's and Stephanie Baxter's written consent.

In assessing alleged violations of constitutional rights, our standard of review is de novo; we make an independent evaluation of the totality of the circumstances as shown by the entire record. State v. Boley, 456 N.W.2d 674, 677 (Iowa 1990), cert. denied, 498 U.S. 924, 111 S.Ct. 305, 112 L.Ed.2d 258 (1990).

Howard contends in his application for further review that Reicherts' promises of leniency, which rendered involuntary the initial warrantless search of his apartment, also rendered involuntary the written consent that Howard and Baxter gave Reicherts before he commenced the second search. The court of appeals concluded that the written consent was valid and therefore affirmed the trial court's conclusion that the second and third searches were constitutional without reaching the question of the validity of the warrant.

A search to which an individual consents comports with the requirements of the fourth amendment. Folkens, 281 N.W.2d at 3. Consent given to a search must be unequivocal, specific, and freely and intelligently given. United States v. Shaibu, 920 F.2d 1423, 1424 (9th Cir.1990); 68 Am.Jur.2d Searches and Seizures § 83, at 709-10 (1993). The question of voluntariness of consent is one of fact, and the State must prove the alleged consent by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 n. 14, 94 S.Ct. 988, 996 n. 14, 39 L.Ed.2d 242, 253 n. 14 (1974); Folkens, 281 N.W.2d at 3.

Even if an initial search is invalid, a later search based on written consent is valid. State v. Garcia, 461 N.W.2d 460, 464 (Iowa 1990), cert. denied, 499 U.S. 909, 111 S.Ct. 1115, 113 L.Ed.2d 223 (1991). In Garcia, the police gave the defendant his Miranda warnings and presented him with a consent-to-search form which stated:

6. You have the right to refuse permission to search your property whether owned, leased, or under your control, without a valid search warrant.

Id. The defendant signed the consent form, and we held the consent was valid. Id.

We likewise believe Howard's and Baxter's written consent to Reicherts' second search was valid.

Like the defendant in Garcia, Howard (and Baxter) signed written forms that informed them of their right to refuse consent in the absence of a valid search warrant. The form specifically stated:

This written permission and consent is given by me voluntarily and without threat or promises of any kind and is free from duress and coercion. I understand that said officer(s) could not make this search or seize any of my property except by legal warrant, and I further realize that my constitutional rights protect me from unreasonable searches and seizures.

I realize that any property thus found in connection with this search might be presented in open court and used against me.

In their testimony, Howard and Baxter admitted to signing this consent. Moreover, Reicherts had called two officers to secure the apartment and detain those present while he went to obtain a warrant. The presence of these officers should have signaled to Howard and the others that Reicherts' intentions extended beyond merely retrieving the stolen goods. Finally, in none of his motions to suppress or dismiss or in any of his arguments on appeal has Howard asserted that Reicherts reiterated his promises of leniency when Reicherts returned with the search warrant. We therefore believe that Reicherts' earlier assurances expired in the course of the intervening events,...

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